Tag Archives: Ken Clarke

The proposed ‘closed material procedures’ (CMPs) in the governments Green Paper seems not only alarming but also hugely misguided. The Green Paper proposes that these secret proceedings would be extended to any civil cases. CMPs would take place without the presence of the defendant and without their knowledge of the charges against them. In these closed procedures, ministers would be able to order hearings to be conducted in secret and claimants would be denied access to government evidence or witnesses.

While the absent defendant would be represented by a barrister in court, there may be no or little contact with their client. This would allow the material and evidence in the trial to be effectively unchallenged in court. To add to the secrecy and absurdity of the prospect of these proceedings, even the final judgment could be wholly or partially withheld, allowing the convicted individual to be deprived of any information regarding his conviction.

Binyam Mohammed

The proposal comes after a number of actions were brought against intelligence agencies by former terrorist suspects, such as Binyam Mohammed, to the embarrassment of both government and the security services. Mohammed, an ex Guantanamo detainee and a British citizen, claims he was tortured while in custody, in the US amongst other places and accused the Britain of being complicit in this. Rather than disclosing intelligence related material to him and other former detainees, the British government paid him £1m in compensation.

Lord Carlile

In response to these proceedings against the government, it appears that high profile figures such as Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee (and MP for Kensington), along with Lord Carlile QC are supporting CMPs as a viable a solution to such problems. The Green Paper proposes to extend the use of CMPs to civil claims. Lord Carlile criticised the current system as being insufficient in dealing with civil cases regarding national security, he claimed that payouts such as that received by Binyamin Mohammed was not an acceptable way of settling civil claims. He argued that the State should not be put in a position of having to choose to pay compensation to a claimant who may be the wrongdoer.

CMPs would take away the transparency of court procedures and give greater powers and increased secrecy to the workings of the security services and the government. The key issues here are accountability and transparency of the legal system. In its response to the Green Paper published on the HM website, the human rights group Reprieve gave a damning criticism of these proposals. They stated that this paper is simply asking the wrong questions, by seeking to drastically reduce the level of accountability of the government and intelligence services rather than attempting to improve these areas.

The response by Northamptonshire Police, welcomed the undisclosed sharing of secret information between states, however it also raised concerns over the misuse of CMPs and their human rights implications.

“The impact of the overuse of CMP’s would be to damage the UK reputation of a free and fair democracy. There are also considerations to be made pursuant to Article 6 of the European Convention on Human Rights – namely, the right to a fair trial”

Malcolm Rifkind

However Malcolm Rifkind argues that the protection of sensitive material is essential to the co-operation with foreign intelligence agencies, and that intelligence sharing will be endangered if these exchanges are exposed in court. He claims that the sharing sensitive material with defendants and the court threatens the the future intelligence co-operation between states, by undermining the principle of confidentiality. Therefore publication of intelligence material would harm our national security.

It is not unusual for government agencies to support legislation infringing civil liberties and human rights in the name of national security. This legislation allowing civil judgements to be made behind closed doors, increases their powers at the expense of fairness and transparency. One of the most notable pieces of legislation in the UK regarding secrecy in the name of protecting national security is the Special Immigration Appeals Commission (SIAC). SIAC deals with appeals for foreign nationals facing detention, deportation or exclusion from the UK, often relating to alleged terrorism offences. It’s hearings and rulings are not fully revealed to the public nor to the appellant, this procedure has been widely criticised for it’s fairness and legality. To extend such secret procedures to civil matters is somewhat distrurbing.

Lord Carlile and Malcolm Rifkind stress the need for CMPs in the interests of national security, while this argument has been widely criticised by many of the respondents to the Green Paper. The response from the Special Advocates, who are appointed to work under SIAC in closed procedures and were proposed to act in CMPs, was particularly telling. They stated that no reason has been identified in the Green Paper to justify the introduction of such sweeping power.

“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas…It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”

The apparent need for CMPs seems to be an attempt by the government to extend it’s powers in the under the guise of national security. The role that secrecy plays in the justice system appears to be solely to the advantage of the security services rather than in the interests of justice. The Green Paper raises both grave procedural and practical concerns, whilst presenting a relatively unrealistic proposal. Transparency and accountability are essential elements of the justice system in England and Wales, by conducting trials in secret and in the absence of the defendant, these proceedings take away core features of a fair trial. Expanding the use of CMPs would also be debilitating for the practice and progression of common law, as these hearings would be prevented from being reported. This would deny lawyers from accessing precedents arising from these procedures, making them only available to a few existing special advocates.

In an ideal world, decisions regarding child custody would not have to be made in court. Sadly the reality in 10% of divorce cases, is that courts are forced to take a central role in deciding the future of the affected children. The process of deciding and managing custody cases is often lengthy and drawn out. Time is even more precious when children are involved, and stalling in the decision making can add ammunition to the negative effects of the break up.

In the UK, there has been an ongoing campaign to give further legal rights to fathers in the UK. Recent proposals to amend the Childrens Act of 1989 were revealed by Ken Clarke yesterday, which would give divorced fathers increased rights to see their children. There is some debate as to whether this would really improve the situation for the affected children. In Australia the introduction of the right to shared access for both parents caused long delays in custody cases, which can worsen the situation for the children involved. The problems encountered in Australia illustrate that it may not be the law that needs changing but the way the cases are handled.

David Norgrove, who chaired the Family Justice Review which was commissioned by the government and published last year, criticised the proposals for reform. The report concluded that the law should not be changed, after thoroughly examining the issue of shared custody. The courts in England and Wales maintain that they assess each case individually and that the welfare of the child takes top priority. The minority of divorce cases that do get heard in the courts are a highly conflicted group, with numerous problems. In these complex cases usually both parents feel unheard. Coming to an agreement regarding custody and shared parenting will not be accelerated by giving parents more rights but by helping them fulfil their responsibilities. Finding a situation that is best for the children is the primary aim in such a situation and should be resolved by trying to give the children a voice. These cases are often very complex, courts already struggle to find the best speedy solution, more legislation could further impair the process.

In the majority of the cases that do go to court, family courts rule in favour of the mother. Because of the conflicted nature of these custody battle, this can result in a proportion of these children having little or no contact with their father. According to the Office for National Statistics, only 8% of single parents in Britain are men. The assumption of the courts is influenced by a traditional image of the nuclear family – where the mother cares for the children and the father works full time. These roles do not necessarily apply to the modern household and the courts bias towards the mother is somewhat out of date.

Growing up without the father can be difficult, but this is not always the fault of the courts or the limited custody rights. There are fathers who make the effort to see their children and there are those that don’t. However they should give the fathers that are good parents and want to have a key role in bringing up their children the opportunity to do so. Both parents have a right to raise their children and to be good parents, whether they are together or not. David Norgrove stated:

“This issue affects the lives of hundreds of thousands of children and it would be negligent not [to consider all options]. It is also right that we continue to encourage fathers to take responsibility as equal parents and to be fully involved with their children from the outset.”

The Children Act 1989 focuses on an individual child and their unique needs, preferences and circumstances. The rights of the child rather than the parents rights should be central in dealing with these cases. The primary issue is the culture of the courts that take an old fashioned stance in dealing with custody cases, rather than the lack of existing laws. The fair implementation of these laws along with the role of the courts and social services should ensure the child has regular access to both parents.